8/12/02

by Todd Brendan Fahey

It ended with a whimper, and not the bang anticipated by legal experts and foes of FreeRepublic.com--from the Left and the Right.

Dubbed by some as the "1st-amendment trial-of-the-decade," the copyright infringement case brought against FreeRepublic.com and its owner Jim Robinson by the Los Angeles Times and Washington Post, and in which was stipulated a one-million dollar judgement against FR by Central California District Court judge Margaret M. Morrow, was settled on June 19, 2002, by all parties at $30,000, against defendant FreeRepublic.com/Jim Robinson.

The suit is resultant of FreeRepublic.com's practice of posting whole-length articles, without approval of their authors and publishers, and, as in the case of the Times/Post, in violation of the publishers' requests to "cease and desist" in said practice.

Denied a writ of certiorari by the U.S. Supreme Court, which would have brought the suit directly to the nation's final judicial decision-making body, and after a rejection of appellate hearing by the 9th District Circuit Court of Appeals, San Francisco, the case was again returned to the lower court, which found that plaintiff's (Times/Post) attorneys had failed to prove their case of damages related to a loss of site traffic from FreeRepublic's whole-length postings of their intellectual property, but also, ultimately, that FreeRepublic is guilty of copyright infringement.

Concluding the nearly four-year long court battle, and as posted on FreeRepublic.com's front-page: "Important Legal Notice: LAT/WP vs Free Republic Settles Free Republic has been permanently enjoined from allowing users to post full text articles from the Los Angeles Times (LAT) and Washington Post (WP) and related subsidiaries and affiliates. Please do not post full text from these sources. Any full text articles from LAT or WP or subsidiaries or affiliates will be deleted in compliance with this court order."

As well, Jim Robinson agreed that: "Free Republic agrees to remove all full text copies of any LAT/WP and related publications copyrighted articles from its archives and servers and to destroy all copies of same."

Beginning in 1999, FR-owner Robinson resisted requests from the Times/Post to adopt a "fair-use" policy of clipping the first paragraph of such articles, and followed by a link directly back to the site-of-origin, citing 1st-amendment and "fair-use" privileges.

His arguments were not compelling, to any of several courts of law.

Successful copyright infringement cases require only that proof of such an infringement has occured, and not a "loss of revenue" on the part of the aggrieved publication. It is surmised and has been whispered at various other news organizations that future suits will be brought against Jim Robinson/FreeRepublic.com, now that the legal precedent for online copyright infringement has been clearly established by a state District Court, a Federal Appellate Court, and denied in certiorari by the United States Supreme Court.

FreeRepublic.com, once an online staple of Right/libertarian activists in America--and which was credited by many political pundits as having been the single-greatest reason for the ultimate success of candidate George W. Bush in the 2000 GOP primary elections and in the bitter general election struggle against Democrat nominee Al Gore--has seen its share of dissension recently. Opponents of Bush's immigration policies, and of the perceived violations of the 4th amendment by FBI and the Department of Justice, in the online cybersnooping mechanisms of the so-called Operation Carnivore and Magic Lantern software--have been banned en masse at FreeRepublic.com.

In the words of owner Robinson:

"Lots of grumbling lately about deleted posts. Well, my friends, the simple truth is the game has changed. We are now at war. We have been attacked by a vicious cold-blooded force of international terrorists who want to destroy our nation, our freedom and our way of life. There is no doubt about this. Knowing this, I am alarmed to read some of the stuff that has been posted to FR in the last few days. This is not the time to raise doubts about our leaders. This is not the time to raise conspiracy theories. This is not the time to second guess our intelligence agencies. This is war. This is survival of our way of life. We must unite behind our Commander-in-chief and do all we possibly can to support him and our war efforts. We do not have a choice in this matter."

Such a proclamation is said to fly in the face of a statement made by a former FreeRepublic.com attorney in the unsuccessful California District Court case, in which was claimed:

"The political views expressed by the majority of participants are congruent with the goal of rooting out corruption in government, though no censorship is made and all views are permitted." (emphasis added)

With precedent having been set as to online copyright infringement, and with the growing division between the restrictive forum policies at FR and the desire of Constitutional activists to vent their concerns as to the Federal government's own violations of the document it is sworn to uphold and protect, it is safe to say that the once-mighty FreeRepublic.com will continue to see its share of struggles, both online and in court.

The complete Techlaw timeline of the case can be found here.